Wassef v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 784
•21 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Wassef v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 784 |
CLAIMANT: | John Wassef |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | John Carter |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 21 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; intestine; post-gastric sleeve; intestinal motility disorder; whole person impairment; statutory provisions/guidelines; pre-accident history; weight increase caused by sedentary lifestyle; gastric sleeve surgery; requirement for weight loss; sequalae of surgery; digestive system tract; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Whole Person Impairment Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 27 February 2024 and issues a new certificate that: The following injuries caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:
|
STATEMENT OF REASONS
INTRODUCTION
John Wassef (the claimant) is a 35-year-old man who was injured in a motor vehicle accident on 24 December 2017. As a consequence of the accident, he suffered an injury to his cervical spine, lumbar spine, right elbow, right ankle, and right shoulder. The injury to his right shoulder included a diagnosis of a fracture of the right radial head. His injuries were agreed to be non-threshold injuries.
The claimant sought a concession from the insurer that his injuries exceed 10% whole person impairment however the insurer, after a review, decline to make this concession. The claimant then sought an assessment of the degree of permanent impairment by application to the Personal Injury Commission (Commission).
The claimant was assessed by Medical Assessor David John Gorman on 3 November 2021 and was certified as sustaining physical injuries which gave rise to a permanent impairment of 8%.
Thereafter the claimant applied for an assessment of degree of permanent impairment for assessment of:
· intestine – post-gastric sleeve, refractory gastro-oesophageal reflux disease (GORD) and intestinal motility disorder.
He was examined by Medical Assessor Ian Cameron on 9 February 2024 who, in a certificate dated 27 February 2024 determined that the injury was not caused by the motor accident and accordingly an assessment of the degree of permanent impairment for these injuries is not required.
The claimant sought a review and, in a certificate dated 27 April 2024, the President’s delegate Jeremy Lum determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect and the matter was then referred to this Medical Review Panel (the Panel).
Upon receipt of the papers the Panel made directions in respect to the provision of all material of all material which was before Medical Assessor Cameron. The Panel, after reviewing all material uploaded to the portal, determined that it was appropriate that the claimant be re-examined.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the Motor Accidents Compensation Act 1999 (MAC Act) together with clauses 1.5-1.7 of the Motor Accident Compensation Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant was examined by video conference on Tuesday 17 September 2024.
HISTORY
Pre-accident medical history and relevant personal details
At the time of the motor vehicle accident, the claimant was managing a family hospitality business, a cafe. He stated he was in good health prior to the accident and was actively exercising and a non-smoker.
The claimant confirmed he had consulted the general practitioner (GP) on several occasions prior to the accident about increased weight.
In February 2013 he attended, his doctor expressing concern about a weight increase because of his sedentary lifestyle.
On 4 March 2014, the GP recorded his weight at 96kg and gave him Duromine. Mr Wassef remembers having one trial of this medication, but it gave him side-effects of profuse sweating and making him jittery, so he stopped this. He then changed to undertaking regular exercise and changed his diet.
He attended the GP on a further occasion in October 2015, worried about his weight.
He says in either 2014 or 2015, he had a period of time on Pristiq, an antidepressant, used in his case, to help him sleep. He also took Endep as an alternative to Pristiq at times and confirmed he was taking one of these medications at the time of the subject accident.
From 2016, he was attending the gym about six times a week and walking after working at the café.
History of the motor accident
Mr Wassef was the driver of a motor vehicle involved in a head-on collision on 24 December 2017. He had injuries to various parts of the body, including significant injuries to the right elbow consisting of fracture of the radial head, and to the right ankle consisting of anterior capsular tear and osteochondral lesions.
He recalls his weight was 82-83kg at the time of the accident, but started to increase almost immediately after the accident.
He confirmed injuries to the ankle, elbow, neck and back, and after surgery on the ankle he was non-weight bearing then partial weight bearing for a total of six months, during which time he did limited walking. He spent more time at home and was eating more, and became more reliant on eating fast foods. He became depressed about his situation. He was taking Pristiq, alternating with Endep, as he had been before the accident.
He continued this altered diet for 1-1.5 years after the accident. His weight, recorded by the GP Dr Moussad on 2 October 2018, was 90kg and on 16 December 2019, 108.6kg. The doctor noted he could not exercise because of the injuries caused by the motor vehicle accident. He was advised dietary changes and Duromine, and side-effects were discussed but he did not end up using this drug.
His weight was recorded at 108kg on 10 August 2020 by Medical Assessor Assem, as 109.2kg on 22 August 2020, and 108kg on 27 October 2020 and on 1 February 2021 by the GP.
He developed a pattern of diarrhoea every couple of months which was non-specific, but did not have any constipation or vomiting. He would have occasional reflux symptoms if the food was heavy with grease and he would use Nexium but only two to three times a month. He was taking occasional paracetamol and ibuprofen for headaches.
He was assessed as suitable for a gastric sleeve operation and at the time of surgery was 110kg. He had this operation in July 2021.
On 3 November 2021, his weight had dropped to 84kg as recorded by Medical Assessor Gorman and Dr Greenberg on 15 February 2022, then recorded as 73kg on 9 May 2022 by Dr Truskett, and 72kg on 9 February 2024 by Medical Assessor Cameron.
After undergoing gastric sleeve surgery, he noticed he would fatigue more quickly and his muscles get sore after activity. He was able to walk his puppy for 15 minutes maximum. He tried going back to the gym and doing weightlifting for two months, but he got a sore right elbow and his ankle flared up.
He found bike riding was OK, but this was limited by fatigability. He tried some gym exercises on a further occasion, but fatigue set in.
Since the surgery, he has developed a pattern of daily vomiting and diarrhoea three or four days a week, alternating with constipation. He also has noticed an increased frequency of oesophageal reflux symptoms.
He moved to Queensland in mid-2023.
Details of any injuries or conditions sustained since the motor accident
Nil relevant.
Summary of relevant documentation
The material provided supports the claimant’s contention that he has sustained an impaired capacity to undertake exercise. The claimant has been under treatment from his GP, Dr Moussad who identified musculo-ligamentous injuries to his cervical spine, lumbar spine as well as the fracture of the right radial head. In particular the claimant sustained an injury to his right ankle which required ankle arthroscopies, osteoplasty and tibial ostectomy which was performed surgically by Dr Kaplan on 13 May 2019. The Panel was satisfied that it is reasonable that he would have significant ongoing discomfort as a consequence of his right ankle pain which would impede any running activities and walking long distances.
The Panel was similarly satisfied that the injury to his right upper limb, providing as it does mildly restricted shoulder movement and tenderness, would similarly restrict him undertaking upper body exercises. In addition to this the claimant does suffer residual symptoms as a consequence of the injury sustained to his cervical and lumbar spine. This is borne out by the CT scan of the claimant’s cervical and lumbar spine performed on 25 January 2018.
Current symptoms
Mr Wassef said he throws up once or twice per day. He fluctuates between diarrhoea and constipation and has severe heartburn. He cannot tolerate particular foods, but which food it varies from day to day. He does find for example that caffeine sets him off.
He gets constipation occasionally, but vomiting daily and diarrhoea three or four days per week. The vomiting can be either in the morning, afternoon or evening and can even be set off by water.
Current and proposed treatment
The claimant takes paracetamol and ibuprofen. He took a lot more ibuprofen earlier on after the motor vehicle accident, but has been avoiding this medication over the last year because it had been increasing symptoms of reflux since the gastric sleeve operation. Prior to the operation he did not notice any significant heartburn.
He also takes Panadeine Forte, Sudafed for a sinus problem about once a month, medication for diarrhoea and very occasional morphine and Docusate for constipation. He also takes Pristiq.
Opinion
The Medical Assessors consider that from their experience, dietary factors are the main driver of increased weight gain but there is some small contribution from a reduced level of exercise, which in this case is the result of orthopaedic injuries to the ankle and elbow, along with his genetic predisposition to weight gain as demonstrated in the past history.
An inability to exercise is a minor cause, but a cause more than negligible, of the gain in weight which resulted in the need for gastric sleeve surgery.
Therefore Clause 6.7 of the Motor Accident Guidelines is satisfied:
“The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible.”
Whole person impairment (WPI) for the digestive system
Upper digestive tract
The claimant has had anatomical loss of part of his stomach due to the gastric sleeve (GS) surgery in July 2021. Since this surgery, he has had mild symptoms of gastro-oesophageal reflux and he vomits on a daily basis but does not take treatment for these symptoms. His weight has reduced, as would be expected following the GS surgery, but is now stable.
The Panel referred to American Medical Association Guides to Evaluation of Permanent Impairment 5th Edition (pp 121-123) to assess the WPI. Since he has had anatomical loss of part of his stomach, and there is no requirement for treatment of the symptoms summarised above, and he is now maintaining his weight at a desirable level, we conclude he has Class 1 impairment of the whole person which has an impairment range of 0%-9%. In view of the upper digestive tract symptoms in addition to the anatomical loss, we have allocated a WPI of 6%.
The claimant has suffered a 6% whole person impairment consequent on the injury being intestine – post gastric sleeve, refractory GORD and intestinal motility disorder.
0
0
0